Before MARIS, GOODRICH and HASTIE, Circuit Judges.
This is an appeal from the District Court for the Western District of Pennsylvania upon a judgment entered in a death by wrongful act case in favor of the administrator of Norman Ormsbee, Jr. The recovery was based on the alleged negligence of the defendant and there was also a finding by the jury that the defendant was guilty of "wanton conduct." The defendant attacks the verdict and judgment on several grounds. The case is in federal court by diversity only and we look to the relevant Pennsylvania decisions.
The first question involves points of tort and agency law. The driver of the truck which was leased to the defendant, Aetna Freight Lines, Inc., had been encountering difficulties while enroute to Midland, Pennsylvania. A day or two prior to the accident there had been brake trouble which defendant's superintendent at Buffalo had endeavored to adjust. On the afternoon of the day in question the driver, Schroyer, stopped at Jones's Tavern at Waterford, Erie County, Pennsylvania. There he complained to the proprietor that he was having trouble with his brakes. Shortly thereafter the decedent, Ormsbee, and a man named Herbert Brown, entered the tavern. Schroyer offered Brown$25 if he would accompany him on the remainder of the trip to Midland stating that he, Schroyer, was afraid he was going to run into trouble. Brown declined the offer. Schroyer thereupon asked Ormsbee to accompany him and he agreed to for the price of $25. The two men got into the tractor. This was the last time they were seen alive. Later that evening state police received a call and in answer thereto found the tractor-trailer off the highway over an embankment and both men dead. This is all the evidence we have except further details of the difficulties which the driver had had with this truck in the earlier part of his trip and the results of a post accident investigation.
The jury was given forthright interrogatories on this phase of the case. They are, with the answers thereto, as follows:
1. "Under the evidence in this case, do you find that an unforeseen contingency arose which made it reasonably necessary for the protection of the defendant's interests that the driver Charles Schroyer engage the decedent Norman Ormsbee, Jr. to accompany him for the remainder of the trip?" Answer: "Yes."
2. "Was the defendant Aetna Freight Lines, Inc. negligent in the maintenance of the equipment or in the operation of the vehicle by the driver Charles Schroyer, either or both, which negligence was the proximate cause of the death of Norman Ormsbee, Jr.?" Answer: "Yes."
3. "Do you find that the braking equipment upon the vehicle in question, considering its size and load and road conditions prevailing, was in proper working order on March 20, 1956?" Answer: "No."
The answer to the first question is attacked by the defendant as being based on insufficient evidence.
The rule of law governing the situation is not so difficult.It is stated in the Restatement as follows:
"If a servant is authorized or apparently authorized to invite persons upon the vehicle * * * of the master, a person so invited is a guest of the master and if the entry is for business purposes, he is a business visitor." I Restatement, Agency 2d § 242, com. b (Tent. Draft No. 4, 1956) (not in 1st ed.).
"Unless otherwise agreed, an agent is authorized to appoint another agent for the principal if:
"(d) an unforeseen contingency arises making it impracticable to communicate with the principal and making such an appointment reasonably necessary for the protection of the interests of the principal entrusted to the agent." 1 Restatement, Agency 2d § 79(d) (Tent. Draft No. 3, 1955) (same as ...